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2007 (8) TMI 691

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....it to file objections against the proposed rejection of its claim for exemption in relation to various items including second sales of iron and steel on the ground that the same were not supported by any documentary evidence to show that the goods suffered tax in terms of section 7A of the Act. The petitioner filed replycum-objections dated March 27, 2007 and produced purchase bill No., date, name and address of the seller, his APGST registration certificate No., etc. After considering the same, the respondent passed the impugned order and confirmed the proposal contained in the show-cause notice. He referred to amended section 7A of the Act, the objections filed by the peti ioner and held that the claim for exemption is unsustainable because the second sales of iron and steel is not supported by any document evidencing that they have suffered tax at the rate of four per cent. Sri E. Manohar, learned Senior Counsel appearing for the petitioner fairly conceded that his client can challenge the order of assessment by filing an appeal under section 19 of the Act, but argued that it may not be compelled to adopt that course because the order impugned in the writ petition is not only c....

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....s not bar the jurisdiction of the High Court to entertain the writ petition, but is a rule evolved by the superior courts for exercise of their discretion, observed as under: "The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the court should act having been clearly laid down, their application ....

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....it to seek resort to the machinery so set up." In Baburam Prakash Chandra Maheswari v. Antarim Zilla Parishad (now Zilla Parishad) AIR 1969 SC 556 the Supreme Court reiterated the rule of alternative remedy in the following words: "...when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been e....

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....ituations. In Harbanslal Sahnia [2003] 2 SCC 107, the Supreme Court considered the situations in which the High Court can exercise power under article 226 of the Constitution of India notwithstanding the availability of alternative remedy and held: ". . . the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC 1). The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High....